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Baumann v. District of Columbia ( 2011 )


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  •                             UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    KRISTOPHER BAUMANN, Chairman of
    The Fraternal Order of Police, Metropolitan
    Police Labor Committee,
    Plaintiff,                                            Civil Action No. 09-1189 (CKK)
    v.
    DISTRICT OF COLUMBIA, et al.,
    Defendants.
    MEMORANDUM OPINION
    (April 8, 2011)
    Plaintiff Kristopher Baumann (“Plaintiff” or “Baumann”), Chairman of the District of
    Columbia Fraternal Order of Police and an Officer of the Metropolitan Police Department
    (“MPD”), brings this action alleging that his employer unlawfully retaliated against him for
    engaging in protected activity in violation of his rights under the First Amendment, the District
    of Columbia Whistleblower Protection Act, 
    D.C. Code §§ 1-615.51
     et seq. (“DCWPA”), and the
    District of Columbia Police Investigations Concerning First Amendment Activities Act of 2004,
    
    D.C. Code §§ 5-333.01
     to 5-333.13. On September 30, 2010, the Court granted-in-part and
    denied-in-part Defendants’ motion for judgment on the pleadings. See Baumann v. District of
    Columbia, 
    744 F. Supp. 2d 216
     (D.D.C. 2010). On November 15, 2010, Baumann filed his
    Second Amended Complaint, which adds four MPD officials as defendants in both their official
    and individual capacities and also names Defendant Cathy L. Lanier, Chief of MPD, as a
    defendant in her individual capacity. Presently pending before the Court are Defendants’ [59]
    1
    Motion to Partially Dismiss Plaintiff’s Second Amended Complaint and [60] Motion to Stay
    Discovery pending resolution of their motion to dismiss. For the foregoing reasons, the Court
    shall GRANT-IN-PART and DENY-IN-PART Defendants’ Motion to Partially Dismiss
    Plaintiff’s Second Amended Complaint and DENY Defendants’ Motion to Stay Discovery as
    moot.
    I. BACKGROUND
    The facts alleged by Baumann in the First Amended Complaint were discussed at length
    in the Court’s prior Memorandum Opinion, and the Court assumes familiarity with that opinion
    here. To summarize, this action arises out of a “barricade” incident that occurred on or about
    May 30, 2009. Following that incident, Baumann directed the Fraternal Order of Police (“FOP”)
    Safety Committee to investigate actions that MPD officials had allegedly taken during the
    incident. The investigation uncovered a taped copy of the radio communications that occurred
    during the incident, and Baumann provided a portion of these recordings to two newspaper
    reporters. MPD Chief of Police Cathy Lanier (“Chief Lanier”) ordered Lieutenant Dean Welch
    (“Lt. Welch”) to conduct an Internal Affairs investigation into the unauthorized release of the
    recordings. Baumann alleges that the Internal Affairs investigation headed by Lt. Welch violated
    the terms of a collective bargaining agreement between MPD and FOP regarding the manner in
    which MPD may investigate union activities. Baumann was ultimately compelled to reveal
    during the Internal Affairs investigation that he had ordered the FOP Safety Committee to
    investigate the barricade incident and that he had given the audio recordings to the press.
    Baumann was threatened with termination and was temporarily relieved of his police duties,
    purportedly due to a missed training session. Baumann also claims that MPD sent a uniformed
    2
    officer to “monitor” a speech he gave to a political group.
    In his Second Amended Complaint, Baumann adds only a few new factual allegations
    pertaining to the four individuals who are added as defendants in their official and individual
    capacities: Assistant Chief of Police Patrick Burke (“Asst. Chief Burke”), Assistant Chief of
    Police Michael Anzallo (“Asst. Chief Anzallo”), Commander Christopher Lojacono (“Cmdr.
    Lojacono”), and Lt. Welch. Specifically, Baumann alleges that Asst. Chief Burke initiated the
    Internal Affairs investigation and provided false information knowing that it would contribute to
    the discipline imposed on Baumann. See Second Am. Compl. ¶ 42. Baumann alleges that Asst.
    Chief Anzallo, Cmdr. Lojacono, and Lt. Welch were aware of Baumann’s protected disclosures
    and knowingly participated in an unjustified investigation that led to disciplinary actions against
    Baumann. See id. ¶ 43. Baumann also incorporates by reference factual allegations set forth in a
    post-hearing brief written by FOP in support of its unfair labor practice complaints pending
    before the Public Employee Review Board (“PERB”). See Second Am. Compl. ¶¶ 41-43. That
    post-hearing brief was attached as an exhibit to Plaintiff’s Motion for Leave to File Second
    Amended Complaint, which the Court granted.
    II. LEGAL STANDARD
    Under the Federal Rules of Civil Procedure, a complaint must contain “a short and plain
    statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. (8)(a), “in
    order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it
    rests.’” Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 555 (2007) (quoting Conley v. Gibson, 
    355 U.S. 41
    , 47 (1957)). Although “detailed factual allegations” are not necessary to withstand a
    Rule 12(b)(6) motion to dismiss for failure to state a claim, a plaintiff must furnish “more than
    3
    labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” 
    Id.
     “Nor
    does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
    enhancement.’” Ashcroft v. Iqbal, 
    129 S.Ct. 1937
    , 1949 (2009) (quoting Twombly, 
    550 U.S. at 557
    ). Rather, a complaint must contain sufficient factual allegations that, if accepted as true,
    “state a claim to relief that is plausible on its face.” Twombly, 
    550 U.S. at 570
    . “A claim has
    facial plausibility when the plaintiff pleads factual content that allows the court to draw the
    reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 
    129 S.Ct. 1949
     (citing Twombly, 
    550 U.S. at 556
    ).
    When considering a motion to dismiss for failure to state a claim, the court “must accept
    as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 
    551 U.S. 89
    , 94 (2007) (per curiam). “The complaint must be liberally construed in favor of the plaintiff,
    who must be granted the benefit of all inferences that can be derived from the facts alleged.”
    Schuler v. United States, 
    617 F.2d 605
    , 608 (D.C. Cir. 1979) (internal quotation marks omitted).
    However, a plaintiff must provide more than just “a sheer possibility that a defendant has acted
    unlawfully.” Iqbal, 
    129 S.Ct. at 1950
    . When a complaint’s well-pleaded facts do not enable a
    court, “draw[ing] on its judicial experience and common sense,” “to infer more than the mere
    possibility of misconduct,” the complaint has not shown that the pleader is entitled to relief. 
    Id.
    III. DISCUSSION
    Defendants move to dismiss the new claims asserted in the Second Amended Complaint,
    i.e., the claims Baumann asserts against Chief Lanier in her individual capacity and the claims
    asserted against Asst. Chief Burke, Asst. Chief Anzallo, Cmdr. Lojacono, and Lt. Welch.
    Defendants argue that these claims against individuals should be dismissed because: (1) at the
    4
    time of the alleged violations, the DCWPA did not provide a cause of action against individual
    supervisors; (2) any claims under the DCWPA are time barred; (3) Baumann has not alleged that
    any of these individual defendants were personally involved in the alleged deprivation of
    Baumann’s constitutional rights; and (4) Baumann has failed to provide a “short and plain
    statement” of his claims as required by Rule 8. The Court shall address each of these arguments
    below.
    A.       Liability for Individual Supervisors Under the DCWPA
    Defendants argue that any claims against individual supervisors under the DCWPA must
    be dismissed because the DCWPA did not provide a cause of action against individuals at the
    time of the alleged violations. This Court has previously addressed the scope of liability under
    the DCWPA prior to 2010, when the statute was amended to explicitly allow for suits against
    individual defendants. In Payne v. District of Columbia, 
    741 F. Supp. 2d 196
     (D.D.C. 2010), this
    Court held that the DCWPA as originally enacted provided a cause of action only against the
    District of Columbia. See 
    id. at 210-11
    . In doing so, the Court agreed with opinions issued by
    several other judges in this District that the DCWPA did not provide a cause of action against
    individual supervisors. See Tabb v. District of Columbia, 
    477 F. Supp. 2d 185
    , 189 (D.D.C.
    2007) (Friedman, J.); Winder v. Erste, Civil Action No. 03-2623, 
    2005 WL 736639
    , at *9
    (D.D.C. Mar. 31, 2005) (Bates, J.). The Court’s decision was based in part on the plain language
    of the statute:
    An employee aggrieved by a violation of § 1-615.53 may bring a civil action before
    a court or a jury in the Superior Court of the District of Columbia seeking relief and
    damages, including but not limited to injunction, reinstatement to the same position
    held before the prohibited personnel action or to an equivalent position, and
    reinstatement of the employee’s seniority rights, restoration of lost benefits, back pay
    5
    and interest on back pay, compensatory damages, and reasonable costs and attorney
    fees. . . . A civil action brought pursuant to this section shall comply with the notice
    requirements of § 12-309.
    
    D.C. Code § 1-615.54
    (a) (2001). The Court concluded that overall, based on the description of
    available remedies, the requirement that aggrieved employees provide notice of their claims to
    the District of Columbia under § 12-309, and the language elsewhere in the statute placing the
    burden of proof on “the employing District agency,” see id. § 1-615.54(b) (2001), there was no
    implied right of action against individual supervisors under the DCWPA. Payne, 
    741 F. Supp. 2d at 196
    .
    The D.C. Council subsequently amended the DCWPA effective March 11, 2010. See
    Whistleblower Protection Amendment Act of 2009, 
    D.C. Code § 1-615.54
    (a)(1) (2010).1 The
    statute now provides that “[a]n employee aggrieved by a violation of § 1-615.53 may bring a civil
    action against the District, and, in his or her personal capacity, any District employee, supervisor,
    or official having personal involvement in the prohibited personnel action . . . .” 
    D.C. Code § 1
    -
    615.54(a)(1). Baumann argues that this Court should apply the amended DCWPA retroactively
    or, alternatively, that the Court should construe the amendments as merely clarifying the scope of
    the statute prior to the amendments. The Court finds these arguments to be unpersuasive.
    As this Court noted in Payne, the general rule is that statutes are presumed to operate only
    prospectively absent a clear indication to the contrary. See 
    741 F. Supp. 2d at
    211 (citing Wolf v.
    D.C. Rental Accommodations Comm’n, 
    414 A.2d 878
    , 880 n.8 (D.C. 1980)); accord Redman v.
    Potomac Place Assocs., LLC, 
    972 A.2d 316
    , 319 n.4 (D.C. 2009) (“[It is a] well-settled principle
    1
    The D.C. Council passed the Act in December 2009, it was approved by the Mayor on
    January 11, 2010, and it became effective on March 11, 2010.
    6
    that retroactive applications of legislation are not to be presumed absent express legislative
    language or other clear implication that such retroactivity was intended.”). The amendments to
    the DCWPA do not purport to be retroactive in application. In determining whether a statute
    operates retroactively, “the court must ask whether the new provision attaches new legal
    consequences to events completed before its enactment.” Landgraf v. USI Film Prods., 
    511 U.S. 244
    , 269-70 (1994). “[T]here is a presumption that legislation that affects substantive rights will
    operate only prospectively.” Lacek v. Washington Hosp. Ctr. Corp., 
    978 A.2d 1194
    , 1197 (D.C.
    2009) (citing Landgraf, 
    511 U.S. at
    269 n.23). There is no question in this case that the acts for
    which Baumann seeks to hold the individual defendants liable occurred prior to the time the
    DCWPA was amended, and applying the statute retroactively would impose civil liability where
    there once was none. “Elementary considerations of fairness dictate that individuals should have
    an opportunity to know what the law is and to conform their conduct accordingly.” Landgraf,
    
    511 U.S. at 265
    . Accordingly, the Court declines to apply the amended DCWPA retroactively
    against the individual defendants in this case.2
    Baumann alternatively argues that the amendments to the DCWPA merely clarified rights
    that existed in the prior version of the statute. Baumann relies on a bench ruling by Superior
    Court Judge John Mott in which he concluded that the amendments merely clarified the D.C.
    Council’s original intent to provide a cause of action against individual supervisors. See Burton
    v. District of Columbia, No. CA-9215-09 (D.C. Super. Ct. Apr. 22, 2010), Hr’g Tr. at 8 (attached
    2
    The Court has no occasion to address whether other amendments to the DCWPA that
    are purely procedural in nature may be applied retroactively. See Duvall v. United States, 
    676 A.2d 448
    , 450 (D.C. 1996) (“Generally, laws which provide for changes in procedure may
    properly be applied to conduct which predated their enactment.”).
    7
    as Pl.’s Ex. 4). Baumann also relies in part on language contained in the D.C. Council’s
    committee report on the bill, which explained that “decisions of local courts have diminished the
    [DCWPA’s] efficacy” and that “[t]his bill aims to clarify and reinforce the protections offered
    under the [DCWPA].” See Pl.’s Ex. 3 (D.C. Council Comm. on Gov’t Operations & the Env’t
    Report on Bill 18-233, the “Whistleblower Protection Amendment Act of 2009”) at 3-4.
    However, that same report describes the provision for individual liability as an “expansion of
    potential liability,” see id. at 7, which appears to acknowledge that the statute did not originally
    provide for individual liability. Ultimately, the manner in which the DCWPA was subsequently
    amended does not persuade the Court that its original analysis of the DCWPA in Payne was
    erroneous. Therefore, the Court shall dismiss the DCWPA claims asserted against individual
    defendants in Baumann’s Second Amended Complaint.
    Because the Court finds that Baumann has no claim against the individual defendants
    under the DCWPA, the Court need not address Defendants’ alternative argument that Baumann’s
    claims are time barred.
    B.      Claims Against Individuals Under Section 1983
    Defendants also move to dismiss any claims asserted against individual defendants under
    
    42 U.S.C. § 1983
     based on Baumann’s purported failure to plead facts showing that the
    individual defendants were personally involved in the alleged deprivation of his constitutional
    rights. “A § 1983 action cannot be maintained against an official in his personal capacity if the
    official was not personally involved in the decisions affecting the plaintiff’s constitutional
    rights.” Elkins v. District of Columbia, 
    636 F. Supp. 2d 29
    , 33 (D.D.C. 2009) (citing Brown v.
    District of Columbia, 
    514 F.3d 1279
    , 1285 (D.C. Cir. 2008)). In its prior Memorandum Opinion,
    8
    the Court ruled that Baumann had adequately pled a violation of his First Amendment rights
    based on the allegedly retaliatory actions taken against him. In his Second Amended Complaint,
    Baumann alleges that Chief Lanier ordered Lt. Welch to conduct the Internal Affairs
    investigation, that Asst. Chief Burke initiated the Internal Affairs investigation with knowledge
    of Baumann’s protected disclosures, and that Asst. Chief Anzallo, Cmdr. Lojacono, and Lt.
    Welch all participated in the investigation with intent to impose discipline against Baumann in
    retaliation for his protected disclosures. “It seems beyond peradventure that a complaint averring
    knowing participation by the defendant in an actionable constitutional deprivation sets forth a
    colorable claim.” Haynesworth v. Miller, 
    820 F.2d 1245
    , 1258 (D.C. Cir. 1987), abrogated on
    other grounds by Hartman v. Moore, 
    547 U.S. 250
     (2006).
    Baumann also incorporates by reference additional allegations detailing these individual
    defendants’ involvement in the alleged retaliatory actions. Defendants argue that Baumann’s
    reference to a post-hearing brief is improper, but this practice is permitted by the Federal Rules
    of Civil Procedure. See Fed. R. Civ. P. 10(c) (“A statement in a pleading may be adopted by
    reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written
    instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”). Defendants
    argue that the allegations adopted by reference do not provide a “short and plain statement” of
    the claims asserted against the individual defendants as required by Federal Rule of Civil
    Procedure 8(a)(2). However, the Court finds that Baumann has satisfied the pleading
    requirements of Rule 8 even without reference to the additional allegations in the post-hearing
    brief. Therefore, Baumann has adequately stated a claim for relief against the individual
    defendants in their personal capacities under § 1983. Accordingly, the Court shall deny
    9
    Defendants’ motion to dismiss the § 1983 claims asserted against the individual defendants in the
    Second Amended Complaint.3
    IV. CONCLUSION
    For the foregoing reasons, the Court shall GRANT-IN-PART Defendants’ [59] Motion to
    Partially Dismiss Plaintiff’s Second Amended Complaint with respect to claims asserted against
    the individual defendants (Chief Lanier, Asst. Chief Burke, Asst. Chief Anzallo, Cmdr.
    Lojacono, and Lt. Welch) under the DCWPA and DENY-IN-PART Defendants’ motion with
    respect to claims asserted against these defendants under § 1983. Because the Court has ruled on
    Defendants’ motion for partial dismissal, the Court shall DENY Defendants’ [60] Motion to Stay
    Discovery as moot. An appropriate order accompanies this Memorandum Opinion.
    Date: April 8, 2011
    /s/
    COLLEEN KOLLAR-KOTELLY
    United States District Judge
    3
    To the extent that Baumann is asserting claims against the individual defendants in their
    official capacities, Baumann is actually suing the District of the Columbia rather than the
    individuals. See Atchinson v. District of Columbia, 
    73 F.3d 418
    , 424 (D.C. Cir. 1996) (“A
    section 1983 suit for damages against municipal officials in their official capacities is . . .
    equivalent to a suit against the municipality itself.”) (citation omitted).
    10